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HOLLiNGER 
pH 8.3 

MILL RUN F3-1543 



: 416 

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SPEECH 



MR. DUNCAN, OF KENTUCKY, 



A -> 



ASSUMPTION OF POWER BY 'flIE EXECUTIVE: 



DELIVERED ^^ ^y*^^ '"' 



IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, 



July 24, 1848, 



WASHINGTON: 

J. AND G. S. GIDEON, PRINTERS. 

'-"v 1848. 



p 4 I f^- 



SPEECH 



The question before the House being on the reference of the President's message in relalion 
'to the establishment of Territorial Governments in New Mexico and California, &c. — 

Mr. DUNCAN, of Kentucky, addressed the House as follows : 
I am pleased to find that a disposition has been manifested by some members 
on this floor to speak on the subject before the House. The message which 
has just been read was produced by a call suggested by the message of the 6th 
of July, which now lies upon your table, and which has found its way into the 
public journals. It appears to be, so far as I was able to judge by the reading 
of it by the clerk, but an elongation and defence of the principles set forth in 
the message of the 6th July. Sic, these two messages are, in my judgment, 
so full of error, and they contain propositions so startling, so repugnant to the 
first principles of our Constitution, and so subversive of every thing that has 
hitherto been regarded as settled by the laws of nations, that I cannot refrain 
from noticing some of their extraordinary positions. It is my belief that, by 
searching all our archives, we can find nothing so derogatory to American 
statesmanship as these two public documents emanating from our American 
Cabinet. The mere statement that in the nineteenth century a civilized coun- 
try, now within our jurisdiction, and subject to our protection, has by the act 
of our President been reduced to a state of absolute anarchy ; that it is now 
without any civil government, and must so remain till Congress shall establish 
one, is well calculated to excite astonishment and produce alarm. Such results 
have not, even in more rude and barbarous ages, been generally produced by 
war, and surely they ought not to be found in this enlightened age. They cer- 
tainly Avere not necessary; and, therefore, they seem to demand the just cen- 
sure not only of the American people, but of all Christendom. Among other 
strange things, the President solemnly makes to this House this communica- 
tion in one of the messages on your table : 

" The war with Mexico having terminated, the power of the Executive to establish or to con- 
tinue temporary civil governments over these territories, which existed under the laws of nations 
whilst they were regarded as conquered provinces in our military occupation, has ceased. By 
their cession to the United States Mexico has no longer any power over them, and, until Con- 
gress shall act, the inhabitants will be without an organized government. Should they be left 
in this condition, confusion and anarchy will be likely to prevail." 

It is my purpose, sir, to examine these statements of the President, and to 

demonstrate that they exhibit a lamentable lack of statesmanship, and an utter 

ignorance of the laws of nations, and the theory of our own Constitution. It is 

laid down, I believe, by every respectable authority, ancient and modern, as 

the general rule, that when one civilized country conquers another, the laws in 

force in the conquered country remain until they are abrogated or modified by 

the conqueror. This, I think, is clearly and undoubtedly the rule of the law 

of nations. Can it be believed that the effect of a military conquest is a state 



of chaos and confusion ? To abrogate the laws and destroy the whole civil gov- 
ernment of a country, and to make new laws and organize a new government 
suited to the wants and the condition of a people, necessarily require some time 
for their accomplishment. Nowise and just sovereign would attempt to do 
such acts until his title by conquest was complete and secure. Is it not fla- 
grantly against every principle of justice and natural right to say, that, during 
the deliberations of the conqueror on his new code of laws, all civil government 
is overturned ? The conduct of a conquering prince who would abrogate the 
the laws and overturn the civil government of a conquered province without 
promulgating new laws and forming a new civil government, would shock the 
sentiments of all mankind ; and hence no such proposition is recognised by the 
law of nations, which is nothing more than a system of principles of natural 
equity and justice, recognised by all mankind, and therefore observed by all 
civiHzed and enlightened nations. There is not, I venture to say, a respecta- 
ble author of modern times to be found who says that the laws of a conquered 
nation do not remain until they are changed by the conqueror. 

This question, as must be known to every lawyer in this House, came up in 
the reign of James I. All who have read Lord Coke know that it was brought 
before the British courts, with Lord Bacon as counsel on one side, and other 
eminent counsel on the other. I allude to Calvin's case. He was born in 
Edinburgh.* After the act of union be brought a real action in England, 
and the question was whether he was or was not an alien. If an ahen, he could 
not maintain the real action. This case brought up the consideration of these 
questions, arising from conquest, and it was at that early day decided that, un- 
til the conqueror made an alteration of those laws, the ancient laws of that 
kingdom remained. The right to alter the ancient laws was deduced from the 
principle that the conquering king had vitoi et necis jwtestatem, and might, 
therefore, impose such terms as he might think proper. 

In earlier days it had been maintained, in the spirit produced by the Crusades, 
that if a Christian king conquered an infidel kingdom, eo insia?iti the laws of 
the infidel were abrogated, because they were repugnant to Christianity and the 
laws of God; and in such cases, they said, that till laws were established by 
the new king natural equity should jn-evail as the rule of right. But this doc- 
trine was at an early ])oriod qualified, even as to infidel countries on conquest, 
in this: that all laws did not cease, but only such as were against God. A case 
of this kind is reported somewhere, I think, in Salkeld. 

Legal gentlemen are also familiar with the great case of Campbell & Hall, in 
which Lord Mansfield, on solemn argument, devoted his master mind to the 
investigation of all the leading questions resulting from conquest. It will be re- 
membered that, in the war with France, Great Britain had taken the Island of 



e 



• In the -original publication of this speech in the Intelligencer, the words " before tli_ 
union" were added to this sentence. That was an error ; but wnolly immaterial to the proposi 
tions drawn from the case, or to my argument. 



/ 



Grenada. A capitulation was granted prior to the proclamation of the peace of 
1763. The King had invited by proclamation settlements in Grenada, and ap- 
pointed a governor, Avith power to call an assembly to regulate the civil govern- 
ment of the island. After that he undertook to levy a duty of 4^ per cent, on 
all the produce of the island that should be shipped; and this was a most equit- 
able duty, because it corresponded with the duties in all the other British Lee- 
ward Islands. It was solemnly decided in this case, with the approbation of all 
learned jurists, that it was not competent for the King under those circum- 
stances to change the prevailing French laws, after his proclamation appointing 
a governor with power to convene an assembly, and that he could not change 
the French laws in contravention even of the terms of capitulation. It was 
conceded that, if not contrary to the terms of the capitulation or the treaty of 
peace, the King had the power, as a prerogative of his croion, to alter the laws 
of a country conquered by British arms, and thus made a dominion of his king- 
dom. This royal prerogative right to prescribe new laws, or a new civil gov- 
ernment, was held to be not an absolute right, but a right limited to such changes 
of the laws as were not contrary to the fundamental principles of the British 
constitution. Lord Mansfield, however, recognised the same principles, which 
were afterwards laid down by our illustrious jurist. Chief Justice Marshall, in 
the case of Canter, in 1st Peters, that the conquering nation, when its conquest 
was confirmed and completed, might change the laws of the conquered country. 

Sir, by the British constitution, whose deep foundations were laid in feudal 
times, their King was regarded as the fountain of all honor and all power. 
To him alone was given the power of making war and making peace, and when 
new acquisitions were gained by conquest, the conquered country belonged to 
the King, and he, as the owner of the country, by right of his crown, had the 
right to abrogate the laws he found in existence, and to make new laM's for the 
conquered country, limited, however, by their constitution or the statutes of 
Parliament limiting his prerogative, and also by the conditions of the treaty 
which secured and confirmed the conquest. This power he could not exercise 
of himself over a country derived by descent. This power of a British 
King to make laws for his conquered provinces as a prerogative of his 
crown, if I mistake not, flowed or was derived from the principle that the con- 
queror had the absolute right of life and death over those subdued in arms; and 
that, therefore, if quarter was given to the vanquished, it was a matter of mere 
grace, and of course he had the right to impose as conditions whatever terms 
he pleased. It Avas on the same reasoning that it was anciently and in more bar- 
barous ages maintained that the conqueror had the right of reducing to slavery 
those whom he had conquered, as the condition on which he had spared life. 

But, sir, the theory of our Constitution is widely diiferent. With us, our 
President is not the source of all honor and power. He is but the mere agent 
.of the great body of the people, in whom rests the original source of all power, 
and whose civil government is therefore founded on public virtue as its basis. 



It is to be hoped that the President of such a country, to whom alone we have 
not committed either the power of making war or making peace, will not be 
maintained in the doctrine that, because he holds the command of our armies 
in time of war, he therefore has the power, as soon as he obtains possession of 
a province by force of z.nn.s, flagrante bello, to abrogate their laws and throw 
down their civil government. I hope, sir, the great principles of the laws of 
nations are not to be thus trifled with, and that an American President will not 
be countenanced in such conduct as will reduce to a state of chaos a neighbor- 
ing province that may fall before our arms. There is no diadem on the head of 
an American President; but he has exerted, as I understand these messages, 
even more of power than was ever held by a European monarch in right of his 
crown. They never claimed or exercised the right of abrogating all law and 
making a new code for a city or province, which, in the chances of war, they 
occupied until the war was over. They have never regarded themselves in- 
vested with this title by conquest before the war was closed, by treaty of peace 
or otlierwise. Although the word "conquer," in its popular acceptation, is 
considered as applicable to the subduing or gaining a victory over any antago- 
nist, I do not understand a title by conquest to be consummated so long as the 
war continues to rage. You may talk about conquering a passion or conquering 
a peace, but, as I understand the laws of nations, there is no title by conquest 
so long as the opposing nation is in existence struggling against her foe. 

When Bonaparte invaded the Russian Empire and marched with his victo- 
rious troops from city to city, and occupied province after province, did he ob- 
tain a right to the country or a title by conquest ? No ! There stood the Em- 
peror of Russia in hostile attitude, attempting to resist and oppose him. Did 
he, in the progress made by his arms, overturn all civil government, and the 
rules to regulate conduct between man and man ? Who ever heard of such a 
pretence ? Even when he entered and occupied Moscow he had not obtained 
the right of conquest. 

So, when General Taylor entered Matamoros, no one considered him as hay- 
ing obtained title for his country. When he stormed Monterey, and, with an 
inferior force, took possession of that strongly fortified city, did any one say 
he had obtained a title by conquest ? I think not. There was Mexico still 
in arms. She raised another well-appointed army, and fought the battle of 
Buena Vista ; and there was not then a title by conquest, for General Scott had 
to go with another army on another line of operations, and fight many liard 
battles before he was able, in the language of the President and his lieir appa- 
rent, even to " conquer a peace," much less to subdue the civil and military 
Government of Mexico. 

Look, sir, at the examples of Ireland, of Berwick, of Gascony, Calais, Gib- 
raltar, Minorca, Grenada, and other places where the right of conquest attached, 
and you will find, I think, that the title by conquest, which gave to a British 
king, in right of his crown as a royal jirerogative, the right to destroy or modify 



existing civil governments, was never asserted till after the treaty of peace* 
Sir, on this point the language of Chief Justice Marshall is : 

" The usage of the world is, if a nation be not entirely subdued, to consider the holding of a 
conquered territory as a mere military occupation, until its fate shall be determined at the treaty 
of peace. If it be ceded by the treaty, the acquisition is confirmed, and the ceded territory be- 
comes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of 
cession, or on such as its new master shall impose." 

Our President, it appears, has claimed and exercised the right, during the 
war, to establish civil government in New Mexico. The claim to this power he 
asserts under the laws of nations, whilst New Mexico was regarded as a con- 
quered province in our military occupation. I contend that our civil jurisdic- 
tion never attached under the laws of nations before the treaty of peace was 
made. The President, upon his assumption of power to legislate for this pro- 
vince whilst the war was still raging, and before its fate had been determined, 
has, as he informs us, destroyed the civil government of the province, and 
established a new civil government. In his thirst and eagerness for conquest, 
he has not been willing to wait till the fate of the countries which he had oc- 
cupied by armed forces was determined. In this will be found, in my opinion, 
the source of most of those errors which have led him step by step to violate 
and overturn the Constitution of his own country and violate the laws of nations. 

But, sir, when our conquest was secured by the treaty, the power of abro- 
gating the Mexican laws and establishing a new civil government did not vest 
in our President. That power belonged to the people of the United States, to 
be exercised by their Representatives in Congress assembled. Our President 
usurped the power of opening custom-houses and laying taxes upon the com- 
merce of the world with Mexico ; and he did not stop there. The money 
thus raised by. taxes laid by the President in the name of tlie United States 
has been expended by the President or his officers in prosecuting the war, not- 
withstanding the provision of our Constitution that no money shall be drawn 
from the Treasury but in consequence of appropriations made by law. I sup- 
pose we will be told in due time that this provision has not been violated, be- 
cause the money was never placed in the Treasury of the United Sates. Sir, 
this would not be a more remarkable argument than some of those now offered 
to defend the Executive usurpations boldly avowed in these messao-es. 

When England conquered a province or an island, and her title was completed 
and confirmed by a treaty of peace, according to the theory of her Government 
the fee simple of the public domain of the conquered country vested in t'he 
king by force of the prerogative of his crown. He could not only make laws 
for it, and levy taxes in it for his private use, but he could dispose of the soil 
by his royal grant. We all remember that many of the proprietary and colo- 
nial governments in America, prior to the Revolution, were based on this rio-ht 
of the British crown. Although the king had originally claimed New York by 
discovery, and had given it by charter to the Duke of York, he, during a war, 
afterwards conquered it from the Dutch, and Charles the Second, electing to 



8 

hold by conquest, changed its civil government by granting new letters patent 
to the Duke of York after this conquest. It cannot be pretended that the title 
of a country conquered by our arms vests in our President ; and, if not, then 
it follows that he can neitJier grant it by letters patent, nor levy taxes upon it 
to be used as he pleases. Sir, the assertion of this power by our President 
would put it out of the power of Congress to put an end to any war in which 
we may be engaged. The fathers of our Constitution thought that the power 
of the Congress to withhold supplies, placed it in their hands to check, if neces- 
sary, the Executive in the prosecution or continuance of unnecessary wars. 
But, if these new views of our Cabinet are acquiesced in, there is no check 
upon the Executive left, so long as he can occupy foreign countries and be 
able to levy on them taxes sufficient to support his armies. He would thus get 
rid of the limit which the Constitution placed upon the powers of Congress, 
when it said that Congress shall have power to raise and support armies, " but 
no appropriation of money to that use shall be for a longer term than two 
years." So anxious were those who formed our Constitution to make effectual 
the check on the power of the President to continue wars, that they would not 
allow Congress to vote supplies beyond the period that the people could send 
new Representatives. All this wisdom is but foolishness, if the President can 
strike these constitutional provisions dead by seizing foreign countries and tax- 
ing them and using the money. 

Sir, our fathers, in all their efforts to separate the powers of the purse and 
the sword, labored in vain if these usurpations shall be tolerated and approved. 
I hope that, far as we may have advanced in the session, and pressed as we 
are with important business, the House will not allow such doctrines to be 
avowed and practised upon without rebuke. We owe it to ourselves, to our 
fathers of the Revolution, to the cause of civil Uberty, to watch the silent and 
stealthy tread of Executive power ; and when such usurpations are made man- 
ifest, we should, in the spirit of the stout Barons of Runnymede, give them a 
stern rebuke, and take such measures as will in future ages cause the Execu- 
tive power to flow in its own legitimate channel. 

We are in no danger of having our liberties overthrown by direct and open 
force. History teaches us that the forms of our Constitution would probably 
long remain after tyranny might, in fact, have trampled over our free institu- 
tions. If ever the temple of our liberties must fall, (which may God avert !) it will 
be by reason of the silent and regular approaches of Executive power, undermin- 
ing first one of its pillars, and then another, until it tumbles of its own weight 

But, sir, these same false doctrines into which the President was evidently 
betrayed by his inordinate thirst for conquest and for acquisition of territory, have 
naturally led him into other enormities. When a monarch, with either arbi- 
trary or limited powers, conquers a country, and his title has been completed 
by a treaty of peace, and he thus acquires the right of giving new laws to his 
new subjects, the correlative obhgation of giving them protection rests upon hira. 



The corollary from which is, they thereby become citizens of his realm and owe 
to him allegiance. No principle of the laws of nation? is better settled than 
this. It was formally settled in Calvin's case. Chief Justice Marshall says . 
^' T^e same act which transfers their country transfers the allegiance of those who 
remain in it." It is the lawful allegiance of the books, as contradistinguished 
from natural allegiance. No respectable jurist, it is believed, denies it. 

But let us see how this has been perverted by our President. He takes pos- 
session of New Mexico, and occupies it by force of arms. Whilst the Avar is 
in progress, and the fate of the province still uncertain, he abrogates their laws 
and overturns their civil government, and establishes another, and thereafter 
the inhabitants who remain are considered as bound to allegiance to him, and 
actually proceeded against in his civil and military courts, and executed for 
treason. We have been told, in some instances, that they were, during the 
war, compelled to take the oath of allegiance to our country. The great error 
consisted in this, that the strong desire for conquest and acquisition, which ap- 
pears to have been the predominating feeling of our President, induced him to 
consider his title by conquest complete before it was in fact so according to the 
laws of nations. He has, in violation of reason and justice, and without autho- 
rity, in fact, overturned the civil government of Nenv Mexico, and established 
another of his own creation in its stead ; and now, when, with exultation, he 
comes to offer us his bantling, he is struck with the reduciio ad absurdam to 
which his own blunders have led him. Reckless as have been his usurpations, 
he was not ready to crown them all by stating to Congress that, apprehending 
they might not understand the principles of civil liberty, he had arrogated the 
prerogative of a royal crown, and legislated for New Mexico, and given to them 
a constitution which would protect their civil rights, and that he had thus 
saved us all trouble on that subject. Modestly apprehending that this might be 
going so far that a 4oniinant party might not be willing to sustain it, under the 
all-powerful appeal to support the President, he was forced to take as the only 
remaining ground the position that his civil government was only temporary, 
and therefore ceased with the peace ; and, as the Mexican power was gone by 
the treaty, the strange and monstrous conclusion to which he is brought is, 
that New Mexico is without any civil government, and that anarchy and con 
fusion must prevail tiU by legislation we give them a permanent or a temporary 
civil government. Instead of this state of things, the laws and civil govern- 
ment of Mexico ought to be found there in fuU and quiet operation, and should 
so continue to prevail, in their legitimate course, till Congress, upon delibera- 
tion, provided for their wants and necessities. Is it possible that in New 
Mexico there is no organized civil government to protect persons and property? 
That there is no judicial power to enforce a contract or redress a tort ? Such 
I am bound, from the declarations of the President, to infer is the condition of 
things in that unfortunate country, unless, indeed, the State of Texas has kind- 
ly interposed in their behalf, and given them a civil government. 



10 

On the face of the message just read, the President attempts to defend his 
usurpations upon the authority of Rice's case, in 4th Wheaton, by making quo- 
tations therefrom. The only question there was, whether goods which had been 
imported into Castine whilst the British "held it as a fortified place were, after 
the restoration of the town to us on the peace, subject to American duties. 
The question to be decided was considered so plain that the court was not 
only unanimous, but said it was not necessary to rely on or cite any authorities 
in support of it. Any person who will reflect on it will see that if, whilst the 
British held Castine, they had imported provisions, clothing, or other articles 
for their troops, they could have given away or sold the excess, when about to 
leave the place, without subjecting the things, thus sold or given, to American 
duties. It is too plain to need authority or argument to establish it, that any 
thing admitted into Castine by the British was not an importation into the Uni- 
ted States, within the scope of our revenue laws. The passages quoted from 
Judge Story's opinion may well be said to be obifer dicta; to be propositions 
laid down more broadly than the decision of the case required. Chief Justice 
Marshall agreed to the decision; and it is not to be supposed that he intended 
then to controvert the proposition which he laid down in Canter's case, and 
which is in almost the same words he reasserted in Boyle's case, in 9th Cranch, 
when he said: "Although acquisitions made during war are not considered as 
permanent until confirmed by treaty, yet to every commercial and belligerent 
purpose they are considered as part of the domain of the conqueror," &.c. 

But it is strange that the President did not perceive that the very opinion of 
Judge Story, from which he quotes, would condemn his acts, instead of justify- 
ing them. Concede to him that the moment he occupied New Mexico, Cali- 
fornia, or Vera Cruz, that they were to be regarded as part of our domain, be- 
longing to us as conquerors; the consequence would clearly be, that under our 
Constitution the President could exercise no legislative powers over them. All leg- 
islative power over our whole domain is granted to Congress. A qualified veto, it 
13 true, is given him as a conservative power, and to check improvident legisla- 
tion. The question is then presented, whether the repeal of the laws of a con- 
quered country, and the making new civil governments, and the making of tar- 
iffs, and collection of duties on goods imported into our country, are or are not 
the exercise of legislative faculties ? To my mind it is clear that they are. In 
what, I ask, does a civil government consist, but in prescribing rules for the 
civil conduct of its subjects ? In political society every individual surrenders a 
portion of his natural rights to procure, in lieu thereof, certain civil rights, for 
instance: it is the natural right of every man to defend or prosecute his rights 
by his own strong arm; but in political society he surrenders those natural 
rights, and obtains the civil right of being protected, and having his wrongs re- 
dressed, by the civil government under which he lives. The prescribing the 
law for the government of the civil conduct of individuals, is clearly a Icgisla- 



11 

tjve function. The organization of civil government, to my mind, involvea at 
least the delegation, if not the exercise, of legislative power. 

So, too, as to adjusting tariff laws and imposing duties. What is this but the 
laying a tax on commerce? And does not that require the exercise of legislative 
power ? To my mind it is clearly so. It is not a military contribution, but a 
rule of civil conduct. No one is by it bound to contribute. It operates not alone- 
on the enemy. The citizen or the stranger is left free to import and pay the duty 
or not. It is essentially a mere tax laid on commerce, and is universally recog- 
nised as a tax. No one will deny the military right of a conquering commander^ 
in time of war, to quarter on the enemy; and to levy military contributions to 
support his army, as a mitigation of the hardships that would result from seizing- 
such private property as may be necessary for the support of his army. But these 
are clearly distinguishable from the ordinary legislative power of laying taxes on 
commerce, or on real estate, or on chattels. No one will doubt the right of a. 
military commander, on taking a city or province of his enemy, to exclude the 
introduction of contraband goods, or any other importations, in his discretion. 
In such a case a British king, treating it as a conquest, may, by the powers of 
his crown, levy taxes upon its commerce. Not so, I apprehend, with our Presi- 
dent. In the Castine case, just cited, the British king levied duties on the goods 
imported. But surely the President cannot intend to rely on that to establish 
right on his part to levy duties in Mexico. The cases would be similar if he were 
entitled to the prerogatives of the British crown. If it is a part of our domain, all 
legislative power over it belongs alone to Congress. Let it not be forgotten that 
a British king originally possessed the legislative, executive, and even judicial 
power. He presided over his courts, and dispensed justice in person. He 
possessed plenary legislative powers, and the constitutions of England are but 
concessions, which have been, step by step, extorted from the crown in favor 
of civil liberty. He still holds an absolute veto on the acts of his lords and com- 
mons, and all his laws at this day are the King's acts in parliament. 

It is strange, when we see in Prussia, in Austria, and other monarchies^ 
the people rising and demanding constitutions or concessions in favor of 
civil liberty from those whose rule was founded on the divine right of kings, that 
the so-called Democratic party of the United States should be found struggling 
for high prerogative power ? They are claiming for their President the right 
to overthrow and to set up civil governments, and to lay taxes, or regulate tar- 
iffs within our domain. 

This power over a conquered country, as a part of his original legislative pow- 
ers, remains in a British king, only because no limitation as to conquered coun 
tries, has been placed upon his prerogative rights ; all the concessions, which 
have been extorted from him, a})plied only to the subjects of his realm, and hence 
he can exercise these powers on conquest. But once exercised, the country be- 
comes part of his dominion ; and thereafter, the concessions which form the 
British constitution apply, and he can only legislate for them in parliament. 



12 

The old Republican party feared that the powers of the President and of Con- 
gress were too great, and therefore they planted themselves in opposition to 
encroachments. The old Federal party feared the powers of the President and 
of Congress were too weak, and were therefore for strengthening them. The 
Whig party now are found where the Whigs where long before our Revolution, 
struggling against the insidious march of prerogative power ; and it is a little 
curious that those who call themselves Democrats should be contending for an 
enlargement of Executive powers, and for conceding to an American President 
those powers, which a British king can only exercise, because his crown hap- 
pens not to have been shorn of them, as to his enemies. 

The President is himself bound by the rules and articles of war. The mili- 
tary laws are themselves the creature of the legislative power, and the President 
bein^ deprived of legislative power, cannot repeal or aboUsh them under our 
Constitution. As the head of the army and Chief Executive, he can prosecute 
an offensive or defensive war, and exercise all the n ilitary power given to him 
by the laws military. Whenever he assumes legislative power it is usurpation. 

Sir, I have for want of time passed over the propositions that our country 
VfdLS reluctantly engaged in this war in the necessary defence of our national 
honor, and that the territories ceded to us constitute full indemnity for all past 
injuries and the costs of this war; and that the brilUant achievements of our 
gallant officers and soldiers in this war constitute the cabilistic security for the 
future, wliich have been so often repeated as to have become stereotyped, and 
therefore must have a place in every message. I have passed by the recom- 
mendation to double the force of the old army while it professes to reduce it to 
what it was before the war. I have not stopped to notice, as it deserves, the 
change of tone as to the efficiency of volunteers as compared with regular 
troops. I have passed by the alarming agitation of the slavery question which 
these conquests have thrown upon us. I have purposely avoided a comment 
on the contradictions which exist between this and other messages, or upon the 
exhibits of this message which have not yet been read to us or placed in our 
hands, and thus far I have been considering the subject aUogether indepen- 
dently of the claim, right, or jurisdiction of Texas over any part of this country. 

But, sir, the argument against these enormous strides of Executive power 
assumes an a fortiori shape when we come to consider that all these violations 
of social order and social duty have actually taken place within the sovereign- 
ty of one of the States of tliis Union. The President tells us it is his opinion 
that the place in which he has exerted these arbitrary powers is within the 
State of Texas — a State which was admitted into our Union with all the rights, 
powers, and privileges of the Old Thirteen. What would be said, sir, if the 
President, under any conjuncture, should, with military force, occupy a county 
of South Carolina or Massachusetts, destroy all civil government in it, and, 
after reducing every thing to chaos and anarchy, ask Congress to legislate a 



13 

new code for such county within the jurisdiction of either of those chivalric and 
venerated States? Sir, the usurpations that brought the head of Charles to the 
block were not half so monstrous; and yet we bear all this, in the very licen- 
tiousness of liberty, because we feel that we are free. 

I respectfully suggest, for the consideration of those with whom it is my good 
fortune to co-operate on this floor, the inquiry, what should be the measure of 
our rebuke for a case like that which is now presented? and whether such pro- 
ceedings, as these lawless usurpations of power demand, would have a better 
chance for calm and dignified deliberation at our next session, after the excit- 
ing questions that now engross the public mind shall have been disposed of by 
the people? For one, I make, at least, my solemn protest against these dan- 
gerous proceedings, and will hold myself ready, either at this session, or the 
proper time, firmly and boldly to vindicate the Constitution against these un- 
paralleled outrages. 

When Louisiana was admitted into our Union, her civil government and laws 
were allowed to remain, and such was the case under Mr. Monroe in regard to 
Florida. When Gen. Jackson Avas sent with the treaty under the great seal of 
Spain to take possession, with the high powers of the Intendant General of 
Cuba, he did not abrogate the existing laws or civil government. It has been 
reserved for an Administration, boasting of its Democracy, to level every thing, 
to overturn every thing, and bring a large portion of a sovereign State of this 
Union into a state of anarchy. Sir, this, I take it, is going a bow-shot ahead 
of Dorrism, or of the ateliers nationaux of France. The wild spirit of De- 
mocracy, degenerated into Jacobinism in its worst days, cannot, in my poor 
judgment, outstrip the achievements of our President over civil liberty which 
these messages exhibit; for he presents to us and to the civilized world the 
strange spectacle of a civilized and christian people, and they, too, within the 
jurisdiction of one of our sovereign States, being by his acts reduced to a state 
of anarchy. I hope, sir, this House will not allow such a precedent to stand with- 
out condemnation, and that it will not finally lay aside these messages without 
vindicating the principles of civil liberty which they have so wantonly outraged. 

Allow me now to say a few words in relation to the position in which Texas 
stands to a part of the territory referred to in these messages. And here let 
me add that I cannot agree with my honorable friend from Ohio (Mr. Vinton) 
in denouncing the President for having expressed his opinion as to the effect of 
the treaty of peace on the title of Texas. I do not sec that any exception can 
be taken to the expression of the opinion of the President, or any officer of this 
Government, or any private person, as to the legal effect of the legislation of 
this country. The President has but given his construction of the annexation 
resolutions passed by Congress and the late treaty. I fear, sir, that there is 
good foundation for the opinion which he has given us. Indeed, I incline to 
the opinion that the conclusion to which he has come as to the mere right of 
Texas will, on careful examination, be found to be correct and sound. 



14 

I was, I believe, the first person that ever addressed a public meeting in 
favor of an effort to have Texas introduced into our Union. But I did not ad- 
vocate it upon the terms and in the mode that it was accomplished by the De- 
mocratic party. In April, 1836, a large popular asseraMy in Louisville, on my 
motion, resolved "that if, in our negotiations with Mexico, the President could 
add Texas to our Union on any reasonable terms satisfactory to Mexico, and 
consistent with the honor and the interest of Texas, such a course on the part 
of our Government would meet our entire approbation." Our Constitution has 
wisely deposited the power and the right of making contracts with foreign gov- 
ernments (which is strictly neither an Executive nor a Legislative power) in 
the hands of the President, with the approbation of two-thirds of the Senate. 

Two modes of annexation were proposed : one by mere resolution, and the 
other by treaty. To the former serious and well-founded objections were taken, 
both as to the constitutional power and the terms in which the proposition was 
couched. By adding the latter as an alternative mode, the resolutions were 
passed. It was emphatically a Democratic measure, passed by the Democratic 
party in both Houses. Only three Whigs voted for it in the Senate, and a 
very small number in this House. It was hurried on with headlong, head- 
strong purpose, in obedience to the high behests of the Democratic party. The 
deed was done, whether for good or for evil; and for its accomplishment in the 
mode it was carried out, the Democratic party are justly accountable. 

Upon examining those resolutions proposing to Texas terms upon which she 
might be annexed, it will be found on their face that Texas had laid claim to 
some territory which she had not reduced to actual possession. I am not about 
to inflict on this House a dissertation on the geography of Texas or the march 
of the army to the Rio Grande. But these resolutions show on their face that 
between the contracting parties some disputes as to her boundary by foreio-n 
governments were anticipated. Now, it is clear that these terms were intro- 
duced in reference to Mexico and the Mexican States; for on the east and north 
we owned the coterminous territory ourselves, and therefore it was understood 
that there were disputes between Texas and the Mexican States as to her west- 
ern and northwestern boundary. The United States proposed as one of the 
terms that Texas "shall also retain all the vacant and unappropriated lands 
lying within its limits,^'' subject to the reservation of a power by the United 
States for '■Hhe adjmtment by this Government of all gucsiions of boundary that 
may arise with other governments.'''' The United States liaving, by the treaty 
as made, put it out of the power of any foreign government to raise any ques- 
tion as to the boundary of Texas, it would seem that we cannot dispute the 
boundary as claimed by her. 

[Here Mr. Vinton interposed, and suggested tliat Texas was admitted, not 
by any specified limits, but that the annexation had admitted only the terri- 
tory that belonged to Texas.] 

I admit that Texas was not guarantied any specific boundary, and that we 



15 

admitted only what was properly included within and rightfully belonged to 
Texas. It was a fundamental proposition of the whole contract of annexation, 
that the United States were not to have any such difficulties as had been pre- 
sented in reference to the Maine boundary, and that the United States was to 
have the power of adjusting the disputes which might arise with any foreign 
governments as to that boundary. It is, nevertheless, clear, on the face of these 
resolutions, that Texas claimed a boundary which was known by both parties 
to be subject to dispute. And here, sir, permit me to ask how the United 
States was to adjust that disputed boundary? Between independent sovereign 
nations there are but two modes of adjusting their disputes. One is by reason, 
the other by the sword. The President tried the former and failed. By our 
Constitution the latter can only be resorted to by Congress, in which body is 
vested the war-making power. It follows as a corollary that, if in such a case 
the appeal to force was made by the President, it was in violation of his constitu- 
tional duties. Whether the resort to force as to this territory, declared on the 
face of the annexation resolutions to be disputed, was a step taken by our Pre- 
sident or by Mexico, I will not stop here to investigate. The point to which 
my argument leads me is this : The parties having understood and agreed that 
Texas claimed a boundary w^hich was disputed, not with us, but with 
some foreign nation or nations, that we agreed to admit her not 
according to the boundary claimed, but with the boundary that might 
be found to belong to her, and that we should have the power of adjust- 
ing what did belong to her. Now, when the United States has by her treaty, 
in the shape in which that treaty was negotiated, silenced aU disputes with 
any foreign Government, is she not estopped to deny the boundary as claimed 
by Texas? [Here Mr. Bayly suggested the reference to the Missouri com- 
promise line.] Yes, sir, it stands conceded on the face of these resolutions 
that Texas claimed north of 36° 30' territory enough to make hereafter two 
States; and express stipulations are made in the contract of annexation as to 
these two States thereafter to be made with the assent of Texas; and yet it is 
clear that Texas had no inhabitants, no actual pedis possessio, as far north as 
that Missouri compromise line. This shows conclusively that it was clearly in 
the contemplation of the parties to this contract that Texas was to hold this 
land claimed by her north of 36° 30', if, in the adjustment of her boundary 
with foreign governments, the claim of such foreign governments thereto could 
be silenced or quieted. Mark the fact, that there was no reservation of a pow- 
er on the part of Congress to settle any dispute between the United States and 
the State of Texas. It would have been subversive of every one's idea of justice 
to permit one party to a dispute to become the arbiter of that dispute. The United 
States never asked, Texas never consented to, any such terms. It is, therefore, 
idle to talk about the power of Congress by legislation to determine that question. 
This matter might have been satisfactorily adjusted with prudence and fore- 
sight. By making a treaty adjusting first the boundary between Texas and 



16 011 932 888 3 ^ 

Mexico, settling what was properly included within and rightfully belonged to 
Texas, there can be no doubt that Texas would have been concluded ; and I 
will go further, and say, that I have no doubt that the United States in making 
such a treaty, would have acted justly, in settling with Mexico the boundary of 
what rightfully belonged to Texas, so as to exclude New INIexico altogether. 
And then the United States Avould have been competent to purchase New 
Mexico, and we should have been relieved from the entangling and alarming 
questions which are now presented. The citizens of New Mexico have had 
their allegiance transferred with the expectation that they were to be at liberty 
in due process of time to form a new State. And lo ! they find that they are, 
by the manner in which the whole matter has been contrived, a part of Texas, 
and bound so to remain till Texas shall assent to the formation ot a new State 
north of 36° 30'. New Mexico, having been reduced to anarchy by the Presi- 
dent, would now, but for the controlling power of this Union, take up arms 
rather than submit to the jurisdiction of Texas, to which she has been subjected 
by the unparalloled statesjnanslup of this Democi-atic A<iniinistration. 

In the midst of the congratulations with which these messages abound, I find 
much cause of alarm and much to deplore. These things ought not to be so. 
Texas, as she has been made to exist by operation of the treaty, is greatly too 
large. She has been given, and we cannot escape from it without her consent, 
a territory that I am satisfied was not when she was admitted properly included 
within and rightfully belonging to her. And we are in actual danger of civil 
commotion unless these subjects shall be handled with prudence and care. It 
becomes the duty of American statesmen to examine and ponder on these things 
with deep solicitude. If Texas shall, Shylock like, demand her bond, the ques- 
tion with me will not be, whether I would have done the things which have 
produced these conflicts, but whether in hac fmdera veiiU 

Sir, there is but one remedy for these evils that I can see, and from that there 
is much ground for hope. It is, that our newly acquired State of Texas may 
possess those enlarged, and patriotic, and liberal views which animated Vir- 
ginia, when, to promote the general welfare, and relieve her sister States from 
jealousy and discord, she made to the United States a cession of all her terri- 
tory northwest of the Ohio river. Texas, under the existing state of things, 
owes it to herself and to the generous sympathy which she received during her 
revolutionary struggle from all parts of the United States, to approach this sub- 
ject with comprehensive and liberal views. She owes it to the peace of that 
Union, of which she is an honored and valued member, to take the course 
which the peace of the whole country demands. And the United States should, 
as an atonement for all her errors and blunders in these matters, resulting from 
the short-sightedness of her statesmen, be prepared and ready to yield any just 
equivalents that might be required to accomplish such important results. 

My hour is just expiring, and I cannot take up and discuss any other ques- 
tions presented by these messages^ and I therefore resign the floor. 



HOLUNGER 
pH 8.5 

MILL RUN F3-1543 



